SEC approves crowd funding plan as White advances JOBS act

By Dave MichaelsBloomberg News

The U.S. Securities and Exchange Commission voted unanimously to seek comment on a proposal to allow businesses to sell ownership stakes in their companies by soliciting investors over the Internet. More

WASHINGTON - The U.S. Securities and Exchange Commission voted unanimously to seek comment on a proposal to allow businesses to sell ownership stakes in their companies by soliciting investors over the Internet.

The SEC plan, advanced at a meeting in Washington Wednesday, would create rules for equity crowd funding, which lawmakers intended to ease financing for startups and small companies when they authorized it in the 2012 Jumpstart Our Business Startups Act. The rules may give a boost to the nascent crowd funding industry as they show the agency’s progress in advancing a backlog of regulations required under the JOBS Act and Dodd-Frank law.

Businesses and startups too small or risky to attract funding from banks or venture capitalists are expected to use equity crowd funding. Its success may turn on whether the rules make crowd funding an attractive way to seek money from investors, said Rory Eakin, chief operating officer of CircleUp Network Inc.

“If they craft rules that are too onerous on the businesses, they won’t get the best companies and that will make it more difficult for investors to find returns,” said Eakin, whose company operates a funding portal that connects companies with accredited investors. “It’s not an easy task, and it’s not surprising to me it has taken some time because they are difficult rules to write.”

Accredited investors

The SEC’s proposal, overdue by nine months, becomes the second regulation from the JOBS Act advanced under Chairman Mary Jo White. In July the agency approved a rule lifting the ban on advertising for investors outside of a public offering, which eased the ability to market directly to accredited investors, or those considered sophisticated and wealthy enough to understand the risks of investing and withstand a loss.

Crowdfunding will be open to any investor regardless of their income or net worth. Eight U.S. senators on Oct. 21. called for White to release the proposal, saying entrepreneurs and companies that created funding platforms have been hurt by the delay.

Under the rule, businesses using crowd funding could raise no more than $5,000 a year from someone whose net worth is less than $100,000. Investors with a net worth greater than $100,000 could contribute as much as 10 percent of their annual income or net worth, to a maximum of $100,000 in one year.

The proposal doesn’t require businesses or brokers engaged in crowd funding to verify compliance with those restrictions, according to a fact sheet released Wednesday by the SEC.

Disclosure requirement

A person investing in a project through a crowd funding portal would have to disclose their income or net worth to the platform operator, said Sherwood Neiss, principal at consultant Crowdfund Capital Advisors. The portal’s systems would then block an investment that exceeds the income and wealth thresholds, he said.

“The most important thing in my mind is ensuring there is robust education to inform potential investors these are high-risk, illiquid investments that are not suitable for all investors,” Eakin said in a phone interview.

The proposal requires crowd funding portals to provide investors with educational materials and forums to enable communication about offerings, according to the SEC fact sheet.

A company using equity crowd funding is limited under the proposal to raising a maximum of $1 million per year. Even small companies that use equity crowd funding would have to, depending on their size, disclose their income-tax returns or financial statements and annual operating results. A company seeking to raise more than $500,000 must provide audited financial statements.

The proposal will be open to public comment for 90 days before the SEC can vote on a final version. The Financial Industry Regulatory Authority will propose detailed rules for funding portals that don’t register as brokerages.

Get the most up-to-date data on the Rhode Island and southern Massachusetts business community from the PBN List Center. Download and purchase PBN Lists as well as the complete Book of Lists in Excel format.